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TMI Blog2009 (9) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... The Joint Commissioner vide his order dated 31-3-2004 had confirmed the demand against the respondents to the tune of Rs.13,91,486/- under proviso to Section 11A of the Central Excise Act, 1944 along with the interest thereon in terms of Section 11AB of the said Act and had also imposed equal amount of penalty under Section 11AC of the said Act read with Rule 25 of the Central Excise Rules, 2002. The Joint Commissioner had granted credence to the Modvat credit amounting to Rs.8,26,264/- while deciding the actual duty liability of the respondent. 3. The lower appellate authority, though has agreed with the findings arrived at by the original authority in relation to the merits of the case, has held that the demand of duty cannot be sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the respondent had suppressed the fact that they were actually manufacturing the product classifiable under heading 7308.90 of the Central Excise Tariff Act, 1985 and thereby they evaded the duty to the tune of Rs.13,91,486/- for the year 1998-99 to 2001-02, i.e. upto February, 2002. Being aggrieved, the matter was carried in appeal by the respondents before the Commissioner (Appeals). The lower appellate authority by order dated 20-9-2004 though confirmed the finding that the product which is manufactured by the respondents is in the nature of the one which is classifiable under sub-heading 7308.90 and not under sub-heading 9406.00 held that the fact that the respondents were manufacturing the product of the nature which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said finding has attained finality as far as this matter is concerned. 7. The point for consideration which remains is related to the issue pertaining to bar of limitation for demanding the duty and imposing the penalty in the facts of the case. The assessment of materials on record by both the authorities below as well as what is sought to be contended by the appellants in their memo of appeal, it is apparent that the respondents had been manufacturing the product in the form of steel structure frames pursuant to the declaration filed by them under Rule 173B describing the product as pre-fabricated building classifiable under sub-heading 9406.00 with the necessary approval thereof by the excise authorities since 1992. It is also appare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise officers and the audit parties during their visit to the appellant's unit and during the course of audit has seen the declaration filed under Rule 173-B. Audit of the unit has also been conducted under E.A-2000. In E.A.2000, auditing party took a round of the unit and witness/study manufacturing process". 8. A plain reading of the above analysis of the materials and findings arrived at regarding the bar of limitation needs no further discussion by this Tribunal on this issue. It is really painful to note that an amount to the extent of about Rs.6 lakhs and odd as duty besides interest and penalty for the period 1998-99 to 2001-02 was allowed to go down the drain either by sheer gross negligence and/or connivance on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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